Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Transnational corporations (TNCs) have moved to the forefront of regulatory governance both within states and in the international arena. The Research Handbook on Transnational Corpora ons provides expert background commentary and up-to-date insights into regulatory frameworks impacting on TNCs at global, industry and national levels. Wri en by global experts in their field, this unique collection of essays provides in-depth understanding of how the forces of globalisation affect the world’s largest corporations, and how those corporations, in turn, shape globalisation.

Comprehensive yet highly accessible, this is the rst major work on the reciprocal impact of TNCs on regulatory processes. The Research Handbook provides guidance on how best to understand the rapidly evolving relationship between TNCs and the processes of treaty making, the forma on of global industry standards and the processes of national law making and policy forma on (with a focus on resource taxa on). Global, industry and national-level case studies are used to explain the basic principles used to support state, private, and international regulatory programs.

Delivering both theoretical and practical insights into the regulation of TNCs, this timely and authoritative Research Handbook will be of particular interest to policy makers, industry practitioners and lawyers. Students and academics will also find it to be an invaluable resource.

ABSTARCT: This contribution considers the nature of the relationships among TNCs, political actors and government, as a set of emerging ecologies of political economy. Each represents a distinct response to the transformation of the global legal, economic and political order in the face of globalization. Each exists autonomously and is evolving simultaneously, yet each is significantly interconnected within a polycentric governance order that lends overall structure without a centering position. The chapter starts with the conventional and traditional ecology of relationships, centered on the state. It then considers the three most distinctive forms of emerging relational ecologies emerging that de-center the state. The first is based on the TNC as the centering element of production chain order. The second is grounded on the emergence of non-state governance centers which assert order through certification, verification, and monitoring. The third posits the emergence of a multi-stakeholder autonomous and self referencing system around production chains. The chapter briefly considers whether there is something like meta theory structuring this disaggregated and scattered by intermeshed systems that have arisen around the state. The examination ends with a brief suggestion of what may lie ahead.

INTRODUCTION

This chapter examines one of the most interesting, and most elusive, areas of transnational corporations (TNC) regulation, and operation– the evolving relationships among the great stakeholders of TNC governance: political actors and governments. It is a dynamic and political topic, built on the slippery foundation of shifting definitions and agendas that has marked the lurch from the 1970s state-based internationalism[2] to the modern polycentric governance logics of economic globalization,[3] though one that still exhibits a substantial amount of national characteristics.[4]

The dynamic element of these relationships can serve as a conceptual starting point. At the start of the third quarter of the last century, the issue of any relationship among TNCs, political actors and government might have occupied very little conceptual space. For the most part, TNCs and non-governmental organizations (NGOs) tended to focus their interactions through the state, and politics. Direct popular mobilizations were just starting in the most developed states – the lettuce (and then grape) boycott led by Cesar Chavez, among the most remarkable and culturally important at the time[5] – but even these were centered around politics and law.[6] The same appeared true in the evolution of popular mobilization in developing states.[7] At the same time the political power of large global enterprises was being exposed in ways that suggested the extent of their power to affect the domestic political and legal orders of developing states.[8]

By the first decades of the 21st century, states appeared to have retreated from either a leading or centering role in the organization of relationships among non-state actors, governments and TNCs.[9] For the most part, states retreated because they were unable or unwilling to change even as economic globalization grounded in the increasing porousness of borders globalized politics and the operations of economic and political actors, producing governance gaps within which domestic legal orders could not reach and within which multi-state harmonization proved difficult.[10] The new center of state or public intervention appeared to have moved upward to international organizations, and then downward into some states (when willing) or outward into the non-state sector.[11] But public intervention no longer monopolized all governance space. Into the void, new transnational systems of self-referencing relationships suggested themselves[12] as critical actors realigned their relationships to create a new regulatory space within which each played a new and important role.[13] Where states once always set the structure of debate and served as the arbiter of rules, TNCs and NGOs began to amplify relationships that became at once both cooperative and adversarial and where they appeared to embrace both monitoring and rule making objectives.[14] And both were increasingly seen as political actors in both transnational and national space, no longer merely objects of state control but now also partners in governance.[15]

Within the emerging political space created through the realignments of power brought by economic globalization, TNCs, NGOs, states and public international organizations have developed a political ecology grounded in their inter-relationships that drives a dynamic political process beyond the state. The interactions of these actors suggest the richness of the ecology of TNC relationships with governments and NGOs, one in which each of the actors are sometimes locked in a series of adverse or cooperative relationships, and sometimes simultaneously in both. The object of the relationship is accountability on one side and risk management on the other.[16] The ideology of this ecology is not fixed and ranges from the notion that each of these actors must remain adverse if the ‘system’ is to produce welfare maximizing results, to notions that deep networks of collective action produce comprehensive systemic coherence.[17] Moreover, the role of each actor within this ecology also remains contested. The overall ideological framework within which these relations are framed also colors the view of these relationships. Three principal variations have proven of enduring importance as conceptual blinders which frame much of the academic, policy and political discourse: neoliberal, statist and production chain.[18]

Actors and ecology in motion suggest the spatial element of the relationships among the principal actors. But the temporal element is important as well. The 1970s, the apex of state ideology, focused on domestic regulation. From the 1980s through the turn of the century was an age of deregulation and competition among states for positions within global production chains. This retreat from the normative project of regulation was filled by NGOs and international organizations, and to some extent by TNCs themselves, in multiple and complex systems that have come to dominate relations among these actors.[19] And indeed, this century is marked by a relationship between TNCs and political actors that underlines the extent to TNCs now view as important the normative legitimacy of NGOs,[20] and in which NGOs view TNCs as sources and objects of governance power.[21] But it is marked by something else, especially outside of the Anglo-American world – the emergence of an increasingly influential view that TNCs, like state organs, have an obligation to realize social norms through their own operations.[22] In other words, that enterprises (and perhaps other political actors – governments and NGOs) have an obligation to act only in ways that are supportive of social norms.[23] Whether social norms might best be enforced through law remains highly contested.

This chapter, then, considers the nature of the relationships among TNCs, political actors and government, as a set of emerging ecologies of political economy. Each represents a distinct response to the transformation of the global legal, economic and political order in the face of globalization. Each exists autonomously and is evolving simultaneously, yet each is significantly interconnected within a polycentric governance order that lends overall structure without a centering position. The chapter starts with the conventional and traditional ecology of relationships, centered on the state. It then considers the three most distinctive forms of emerging relational ecologies that de-center the state. The first is based on the TNC as the centering element of the production chain order. The second is grounded on the emergence of non-state governance centers which assert order through certification, verification, and monitoring. The third posits the emergence of a multi-stakeholder autonomous and self-referencing system around production chains. The chapter briefly considers whether there is something like meta theory useful for the understanding of these otherwise disaggregated and scattered but intermeshed systems that have arisen around the state. The chapter ends with a brief suggestion of what may lie ahead.

NOTES

[1] My great thanks to my research assistant Angelo Mancini (Penn State Law JD expected 2017) for his superlative work on this chapter.

[9] See, e.g., Susan Strange, The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge UP, 1996).

[10] Considered in some aspects in Robert O. Keohane, ‘Global Governance and Democratic Accountability’, in David Held and Mathias Koenig-Archibugi (eds), Taming Globalization: Frontiers of Governance (Polity Press, 2003) 130–157.

[15] ‘Path breaking in the mid-1990s, strategic long-term collaborations among government, business, and civil society actors in the pursuit of common objectives are today a staple of the emerging global community.’ William S. Reese, Cathryn L. Thorup and Timothy K. Gerson, What Works in Public/Private Partnering: Building Alliances for Youth Development (International Youth Foundation, 2002) 6.

[18] See, e.g., Larry Catá Backer, ‘Economic Globalization Ascendant: Four Perspectives on the Emerging Ideology of the State in the New Global Order’ (2006) 17 (1) Berkeley La Raza Law Journal 141–168. Discussed at Part 2, infra.

[20] See, e.g., Shelly L. Brickson, ‘Organizational identity orientation: The genesis of the role of the firm and distinct forms of social value’ (2007) 32 Academy of Management Review 864 and discussed in Bauer (n 13).

Subscribe To

ORCHID QR Code

ACI

A Top 100 Blog--Online Schools.org

Follow by Email

PRINTING INDIVIDUAL POSTS

Individual postings may now be more easily printed. To print, FIRST, click on the title of the essay you want to print, THEN scroll down to the "Labels" line near the end of the essay and CLICK on "print this article."

Cluster Maps

Wikio

Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

BACKERINLAW--PERSONAL WEBSITE

Here you can find my published work, manuscripts, presentations, and more!

Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.